Are documents
created by a public official on a public computer system considered "public
records" under Michigan's Freedom of Information Act? In a "friend of the
court" brief filed in 2009, Mackinac Senior Legal Analyst Patrick J. Wright
argued the answer is "yes" and warned that a failure to readily disclose such
documents would seriously undermine the value of Michigan's Freedom of
Information Act.

Unfortunately, the Michigan Court of Appeals in January
held that e-mails generated on a government server are generally not subject to
FOIA. If this ruling stands, Wright points out, it will severely limit the
public's ability to monitor the activity of their government.

The Center submitted its
brief in a case filed by an independent journalist requesting e-mails generated
over a three-month period by three Howell Public Schools teachers who were
union officials. Using school computers, the officials exchanged tens of
thousands of e-mails, many of them in the context of negotiations for a new
collective bargaining agreement.

Michigan's FOIA — as
well as its Open Meetings Act — was passed in the aftermath of Watergate to
provide the public with "full and complete information regarding the affairs of
government and the official acts of those who represent them as public
officials." State courts have long recognized that FOIA is meant "to deter
efforts of agency officials to prevent disclosure of mistakes and
irregularities committed by them."

But in its latest ruling, the Court of Appeals
held that an e-mail is not a "public record" when it "falls expressly outside
the performance of an official function, i.e. the furtherance of the
instructional goals of the district." The holding means that the public could
use FOIA to request checks related to the purchase of school supplies, but
would not be able to access checks that school officials were using to embezzle
funds, because embezzlement is not an official function.

Further, by rejecting a
categorical approach, the Court of Appeals is setting up a situation where each
e-mail must be individually litigated. The case at issue involved 20,000
e-mails; even if every single one of these e-mails was "personal," that much
tax-funded work time being expended on personal matters is a concern.

It is expected that an appeal will be filed by the party
that was denied access to the e-mails. At that time, Wright is likely to file
another brief in support of government transparency.